- 1 - HC-KAR NC: 2025:KHC:35379 RSA NO.1448 OF 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S. INDIRESH REGULAR SECOND APPEAL NO.1448 OF 2015 (SP) BETWEEN: SRI. PRABHAKAR S/O BHEEMAIAH, AGED ABOUT 28 YEARS, R/AT DOMMASANDARA VILLAGE, SARJAPURA HOBLI, ANEKAL TALUK, BENGALURU DISTRICT - 562 125. …APPELLANT (BY SRI. VISWANATHA SHETTY V., ADVOCATE) AND: SRI. D.M. NAGARAJU S/O MUNIRAMAIAH, AGED ABOUT 53 YEARS, R/AT DOMMASANDRA VILLAGE, SARJAPURA HOBLI, ANEKALTALUK, BENGALURU DISTRICT - 562 125. …RESPONDENT (BY SRI. V. ANAND, ADVOCATE AND SRI. MAHESH H.V., ADVOCATE) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 02ND MAY, 2015 PASSED IN REGULAR APPEAL NO.28 OF 2010 ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, SIT AT ANEKAL, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 23RD APRIL, 2010 PASSED IN ORIGINAL SUIT NO.143 OF 2008 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (JR.DN.) AND JMFC., ANEKAL. Digitally signed by SHARMA ANAND CHAYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:35379 RSA NO.1448 OF 2015 THIS APPEAL COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S. INDIRESH ORAL JUDGMENT This appeal is preferred by the plaintiff, challenging the judgment and decree dated 02nd May, 2015 passed in Regular Appeal No.28 of 2010 on the file of the III Additional District and Sessions Judge, Bengaluru Rural District, Sit at Anekal, dismissing the appeal and confirming the judgment and decree dated 23rd April, 2010 passed in Original Suit No.143 of 2008 on the file of the Additional Civil Judge (Jr.Dn.) and JMFC., Anekal, wherein, the suit of the plaintiff came to be decreed in- part. 2. For the sake of convenience, the parties in this appeal are referred to as per their ranking before the Trial Court. 3. It is the case of the plaintiff that the defendant is the owner of the suit schedule property and he has executed the Agreement of Sale dated 24th October, 2005 to sell the suit schedule property in favour of the plaintiff for a total consideration of Rs.3,00,000/-. The plaintiff paid Rs.1,50,000/- - 3 - HC-KAR NC: 2025:KHC:35379 RSA NO.1448 OF 2015 as advance and agreed to pay the balance sale consideration amount of Rs.1,50,000/- at the time of the registration of the Sale Deed. It is also stated that, on the date of Agreement of Sale, the defendant put the plaintiff in possession and enjoyment of the suit schedule property. It is the case of the plaintiff that the defendant has to execute the registered Sale Deed within Twelve months from the date of execution of the Agreement of Sale and as such, plaintiff approached the defendants for execution of the registered Sale Deed and same has not yield any result. In this regard, the plaintiff also caused legal notice dated 30th October, 2007 and same was returned to the plaintiff as not claimed. Hence, the plaintiff filed the instant suit, seeking relief of specific performance of the contract. 4. After service of notice, defendant entered appearance, however, not contested the matter by filing written statement. 5. The Trial Court, after considering the material on record, formulated the points for its consideration. - 4 - HC-KAR NC: 2025:KHC:35379 RSA NO.1448 OF 2015 6. In order to establish their case, the plaintiff examined three witnesses as PW1 to PW3 and marked 6 documents as Exhibits P1 to P6. On the other hand, the defendant neither examined any witness nor produced any document in his support. 7. The Trial Court, after considering the material on record, by its judgment and decree dated 23rd April, 2010, decreed the suit of the plaintiff in-part and directed the defendant to refund the advance amount of Rs.1,50,000/- with interest at the rates of 7% per annum. Being aggrieved by the same, plaintiff preferred Regular Appeal No.28 of 2010 before the First Appellate Court and same was contested by the defendant. The First Appellate Court, after re-appreciating the material on record, by its judgment and decree dated 02nd May, 2015, dismissed the appeal and confirmed the judgment and decree dated 23rd April, 2010 passed by the Trial Court. Hence, the plaintiff preferred the present appeal. 8. This Court, by order dated 28.11.2024 admitted the appeal to consider the following substantial question of law: - 5 - HC-KAR NC: 2025:KHC:35379 RSA NO.1448 OF 2015 "When Trial Court held execution of agreement of sale and readiness and willingness as proved, whether it was justified in denying relief of specific performance and granting alternative relief of refund only on ground that Ex.P2 showed suit property to be standing in name of defendant's father, ignoring contents of Ex.P3?" 9. Heard Sri. Viswanatha Shetty V., learned counsel appearing for the appellant and Sri. V. Anand and Sri. Mahesh H.V., learned counsel appearing for the respondent. 10. Sri. Viswanatha Shetty V., learned counsel appearing for the appellant/plaintiff contended that the plaintiff proved the Exhibit P1-Agreement of Sale executed by the defendant in favour of the plaintiff to sell the suit schedule property by examining PW2 and PW3 as witnesses to the Agreement of Sale. He further contended that, though the plaintiff produced the Demand Register at Exhibit P2 and P3, which stand in the name of the father of the defendant and the defendant was in cultivation of the subject land, the finding recorded by both the Courts below rejecting the suit for specific performance, requires interference by this Court. - 6 - HC-KAR NC: 2025:KHC:35379 RSA NO.1448 OF 2015 11. Per contra, Sri. V. Anand and Sri. Mahesh H.V., learned counsel appearing for the appellant sought to justify the impugned judgment and decree passed by the Courts below. 12. In the light of the submission made by learned counsel appearing for the parties, it is not in dispute that the Agreement of Sale dated 24th October, 2005 (Exhibit P1) entered into between the plaintiff and the defendant, wherein the defendant agreed to sell the suit schedule property in favour of the plaintiff for a total consideration of Rs.3,00,000/- and he had received Rs.1,50,000/- as advance amount with an obligation to complete the sale transaction within twelve months from the date of execution of the Agreement of Sale. 13. The plaintiff examined the witnesses to the Agreement of Sale dated 24th October, 2005 (Exhibit P1). The deposition of the PW2 and PW3 establishes the execution of the Agreement of Sale. In order to prove the readiness and willingness on the part of the plaintiff, legal notice dated 30th October, 2007 (Exhibit P5) was issued by the plaintiff to the defendant. The plaintiff produced the Demand Registers - 7 - HC-KAR NC: 2025:KHC:35379 RSA NO.1448 OF 2015 (Exhibits 'P2' and 'P3') issued by the competent authority, evidencing the ownership of the defendant in respect of the suit schedule property. In that view of the matter, as the defendant has not adduced any oral or documentary evidence before the Trial Court, the Trial Court committed an error in declining to grant relief of specific performance and ordered for refund of the part of the consideration amount paid by plaintiff with interest. It is the duty of the defendant to contest the matter on merits and to substantiate his case before the Trial Court. In the absence of the same, the finding recorded by the Trial Court is required to be interfered with in this appeal. The First Appellate Court has not properly re-appreciated the material on record as required under Order XLI Rule 1 of the Code of Civil Procedure. Therefore, substantial question of law framed by this Court favours the plaintiff. Hence, I pass the following: ORDER a) Regular Second Appeal allowed; b) Judgment and decree dated 02nd May, 2015 passed in Regular Appeal No.28 of 2010 on the file of the III Additional District and Sessions Judge, Sit at Anekal and judgment and decree - 8 - HC-KAR NC: 2025:KHC:35379 RSA NO.1448 OF 2015 dated 23rd April, 2010 passed in Original Suit No.143 of 2008 on the file of the Additional Civil Judge (Jr.Dn.) and JMFC., Anekal are hereby set-aside; c) Suit of the plaintiff is decreed, by directing the defendant to execute the registered Sale Deed in respect of the suit schedule property in favour of the plaintiff within three months from the date of receipt of this order, failing which, liberty is reserved to plaintiff to file appropriate application before the Trial Court to get the registered Sale Deed in his favour through the interference of the Trial Court. Sd/- (E.S. INDIRESH) JUDGE ARK List No.: 1 Sl No.: 41